Full Judgment Text
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PETITIONER:
SHANKAR PRAHLAD DESHPANDE & ORS.
Vs.
RESPONDENT:
SETH GENDALAL MOTILAL PATNI & ORS.
DATE OF JUDGMENT:
29/10/1969
BENCH:
ACT:
Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals and Alienated Lands) Act 1 of 1951, ss. 22, 23-
Discharge of debt for nonsubmission of statement of claim-
Fresh order under s. 22 by claims officer necessary where
previous order to submit claim annulled by Board of Revenue.
HEADNOTE:
A mortgagor applied to the Claims Officer under s. 19 of the
Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals and Alienated Lands) Act 1 of 1951 for determination
of the debt due to the mortgagee and for scaling down the
debt. The mortgagee contended that the debt, by
adjudication of court, had been merged into a decree and
there was no secured debt which could be determined or
scaled down. The Claims, Officer held that there was a debt
due to the mortgagee, that it was a secured debt and that he
had jurisdiction for "determining the debt" and directed the
mortgagee to submit a statement of the claim under s. 22 of
the Act. On appeal by the mortgagee, the Board of Revenue,
following the judgment of the High Court in Ramkishan v.
Board of Revenue, Madhya Pradesh I.L.R. [1954] Nag. 430,
held that the Claim Officer had ’no jurisdiction to decide
whether the debt was a secured debt. Upon the High Court
overruling Ramkrishna’s case in Jethalal Bhawanji v.
Prabhakar Sadasiv I. L.R. [1956] Nag. 147, the mortgagee
field a statement of his claim before the Claims Officer.
The mortgagor contended that the debt stood discharged under
s. 22 of the Act as the mortgagee had failed to file a
statement of his claim as originally directed by the Claims
Officer. The Claims Officer upheld the contention. The
Commissioner in appeal set aside the order of the Claims
Officer discharging the debt and a petition in the High
Court against the Commissioner’s order was summarily
dismissed. Dismissing the appeal to this Court,
HELD : Section 22 enacts a penal provision and unless the
conditions precedent are satisfied, the debt could not by
operation of the statute be discharged.
In the present case the order of the Claims Officer was
reversed by the Board of Revenue, and all directions given
by the Claims Officer, pursuant to his order calling upon
the mortgagee to file a statement of his claim, stood
annulled. Thereafter the -Claims Officer did not pass any
order under s. 22 of the Act 1 of 1951 directing that the
proceeding shall continue and further directing that a
notice shall issue calling upon the mortgagee to file a
statement of the claim. Until a notice, valid in law,
directing that a statement be filed was served upon the
mortgagee and he failed to comply with it, the debt could
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not be discharged. [179 G-180 B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2373 of 1966.
Appeal from the judgment and order dated September 1964 of
the Bombay High Court Nagpur Bench in Special Civil Appli-
cation No. 471 of 1964.
178
C.B. Agarwala, G., L. Sanghi, P. N. Kukde and A. G. Ratna-
parkhi, for the appellants Nos. 1, 2 and 4 to 6.
R. M. Hazarnavis and A. G. Ratnaparkhi, for appellant
No.3.
S. T. Desai, M. S. Gupta and S. K. Dhingra, for respondent
No. 1.
N. S. Bindraand S. P. Nayar, for respondents Nos. 2 and 3.
The Judgment of the Court was delivered by
Shah, J.-Gendalal-hereinafter called ’the mortgage’-filed
Suit No. 11 of 1939 for recovery of the amount due under a
deed of mortgage of proprietary rights in certain villages
executed in 1929 by Prahlad-father of the appellant. A
preliminary mortgage decree was passed declaring that Rs.
2,16,309/11/9 were due on the mortgage. The decree was made
absolute for sale. The mortgage commenced in 1948
proceedings for executing the decree.
On March 31, 1951, the Madhya Pradesh Abolition of Pro-
prietary Rights (Estates, Mahals, Alienated Lands) Act 1 of
1951 was brought into force. By virtue of s. 3 of that Act
the proprietary rights of holders of estates, mahals,
alienated villages. and alienated lands stood vested in the
State. Chapter IV of the Act provided for "determination of
debts". The mortgagor Prahlad applied on April 26, 1951 to
the Claims Officer under S. 19 of that Act for
"determination of the debt" due to the mortgagee and for
scaling down the debt. The mortgagee contended that the
debt had, by adjudication of the Court, been merged into a
decree and there was no "secured debt" which could be
determined or scaled down. The Claims Officer held that
there was a debt due to the mortgagee, that it was a secured
debt, and that he had jurisdiction to "determine the debt".
On November 19, 1951 the Claims Officer directed the
mortgagee to submit a statement of the claim under s. 22 of
the Act.
Against the order of the Claims Officer, the mortgagee
appealed to the Board of Revenue. Following the judgment of
the Nagpur High Court in Ramkishan v. Board of Revenue,
Madhya Pradesh(1), the Board of Revenue set aside the order
holding that the Claims Officer had no jurisdiction to
decide the question Whether there was a secured debt, and
that the Civil Court alone was competent to decide that
question.
In the execution application filed by the mortgagee the
Additional District Judge held that there was a secured debt
within the meaning of s. 19 read with s. 17(1) of the Act
due to the mortgagee under the mortgage, notwithstanding the
decree passed by the Civil Court.
(1) I.L.R [1954] Nag. 430.
179
On October 3, 1955, the High Court of Nagpur in Jethalal
Bhawanji v. Prabhakar Sadashiv(1) overruled the Judgment in
Ramkrishna’s case (2 ) , and held that the Claims Officer
had jurisdiction to decide whether a debt was a secured
debt. The mortgagee then filed on January 23, 1958, a
statement of his claim. On March 26, 1958, the appellant-
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son of the original mortgagor Prahlad-contended that the
debt stood discharged because the mortgagee had failed to
file a statement of his claim as ordered on November 19,
1951 by the Claims Officer. By order dated December 24,
1962 the Claims Officer upheld the contention of the
appellant. Against that order the mortgagee preferred an
appeal to the Commissioner, Nagpur Division. At the hearing
of the appeal, the appellant contended that the Commissioner
had no jurisdiction to hear the appeal. The Commissioner
rejected the contention of the appellant and set aside the
order of the Claims Officer discharging the debt.
A petition moved by the appellant in the’ High Court of
Bombay at Nagpur challenging the order passed by the Commis-
sioner was summarily dismissed. With certificate granted by
the High Court, this appeal has been preferred.
Counsel contended that the mortgagee failed to file a state-
ment of account pursuant to the order dated November 19,
1951 by the Claims Officer, and by virtue of s. 22 of the
Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act 1 of 1951 the debt stood
discharged. But the order of the Claims Officer holding
that there was a secured debt was set aside in appeal by the
Board of Revenue. Any proceeding consequent upon that
adjudication was, in view of the judgment of the Board of
Revenue, unauthorised. That decision of the Board of
Revenue became final between the parties. It cannot be
contended that because in another proceeding the High Court
of Nagpur expressed the view that the judgment on which the
Board of Revenue relied was erroneous, the direction of the
Claims Officer requiring the mortgagee to file his statement
of account was revived, and if the directions of the Claims
Officer word not complied with, the debt due to the
mortgagee was discharged. The order of the Claims Officer
was reversed by the Board of Revenue, and all directions
given by the Claims Officer, pursuant to his order calling
upon the mortgagee to file a statement of his claim, stood
annulled. The Nagpur High Court in Jethalal Bhawanji’s
case(1), it is true, decided that the Claims Officer was
competent under s. 23 of M.P. Act 1 of 1951 to determine
whether a debt is a secured debt. But the first order of
the Claims Officer was annulled by order of the Board of
(1) I.L.R. [1956] Nag. 147.
(2) I.L.R. (19541 Nag. 480.
180
Revenue and thereafter that officer did not pass any order
under s. 22 of Act 1 of 1951 directing that the proceeding
shall continue, and further directing that a notice shall
issue calling upon the mortgagee to file a statement of the
claim. Until a notice, valid in law, directing that a
statement be filed was served upon the mortgage and he
failed to comply with it, the debt could not be discharged.
Section 22 enacts a penal provision and unless the
conditions precedent are satisfied, the debt could not by
operation of the statute be discharged).
The High Court was right in dismissing the petition. The
appeal fails and is dismissed with costs.
Y.P.
Appeal dismissed
181